The Supreme Court's Rejection of the Malicious Citizenship Question Should Have Been Obvious | Opinion

It is difficult to overstate the importance of the Supreme Court's decision stopping the Department of Commerce from adding a citizenship question to the 2020 census.

At its most basic level, the decision upholds the primacy of the Supreme Court as the ultimate arbiter of what is legal action by government officials. Had the decision gone the other way, it would have been a signal that a Cabinet secretary can decide on a course of action, create a façade to justify that action post hoc, hide that history and his true reasons in his decision, and get away with it.

For that is precisely what happened here. Commerce Secretary Wilbur Ross decided—apparently for political reasons connected to the belief that reducing the influence of the Latinx population on congressional apportionment would help the Republican Party—to risk the accuracy of the census count. He pretended he was adding the citizenship question because the Department of Justice needed it, all the while knowing that he had begged the DOJ to ask him to add the question.

This should have been a no-brainer for the Supreme Court.

But, as Chief Justice Roberts wrote, "Accepting contrived means would defeat the purpose" of judicial review. "If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the actions taken in this case."

Although the decision was closer than it should have been, fortunately, we do not have to live with the ramifications of a decision giving the secretary a free pass on such outrageous conduct.

What we do have to live with, however, is the reality that, even without a citizenship question, minority populations have been historically undercounted in past censuses. According to the Census Bureau, in the 2010 census, the black population was undercounted by 2.1 percent and the Latinx population by 1.5 percent.

Millions of people were missed, which translates into the potential loss of representation for these communities at virtually every elective office level, from Congress down to city councils, and the loss of their fair share of hundreds of billions of dollars of federal funding, including allocations for programs specifically designed to help these vulnerable populations. Programs based on the census count range from Title I funding, to school districts based on the estimate of children living in poverty, to the Supplemental Nutrition Program for Women, Infants and Children, to Medicaid and Older American Act grants.

Adding the citizenship question to the census would have greatly exacerbated the undercount. By an estimate most recently released by the Census Bureau, initial nonresponse to the census would have increased by 8 percent among immigrants. A federal court estimated that the undercount among immigrant communities would have exceeded 6.5 million people.

But we cannot rest on our laurels simply because we avoided the disaster of letting Ross have his way. The level of mistrust of this administration among communities of color, given the constant anti-immigrant rhetoric, is high. We must redouble our efforts to do everything possible to make sure that every person residing in this country is counted—as the Constitution requires.

This means mobilizing on an unprecedented level to ensure that every governmental official complies with the strict and comprehensive confidentiality protections for individual census information, and that we are ready to provide safeguards to those in our most vulnerable populations against misuse of that information.

Having fought the good fight against official arbitrariness and to preserve the integrity of the census from political machinations, we will now fight to get out the count.

Kristen Clarke is president and executive director of the Lawyers' Committee for Civil Rights Under Law.

Ezra Rosenberg is co-director of the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law.